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Death penalty

• The death penalty, often called capital punishment, is the highest form of punishment that the authorities can inflict in any state.

• For an accused to be eligible for the death sentence, he has to commit a crime of that degree so that the judiciary awards a death sentence to the accused.
• It comes from the deterrence theory of law, which believes in setting an example in the minds of individuals by punishing the criminal and creating fear.
• Global scenario- 104 countries have completely abolished the death penalty, whereas 29 others have abolished it de facto (meaning no execution of any person has been carried out in the last ten years).

Constitutional provision-

• Article 21- provides that no person shall be deprived of his life or personal liberty except according to procedures established by law.
• Article 72- provides that the president can pardon the death sentence.
• Judicial review- if the president rejects the pardoning, there still exists scope for judicial review.
• Article 134- there is a right of appeal from the high court verdict to the supreme court.

Offences for which the death penalty can be awarded:

• Aggravated murder- Section 302 of the Indian Penal Code, 1860 declares aggravated murder to be a death offence. In Bachan Singh v. State of Punjab, the Court of India determined that the death penalty is only constitutionally admissible when imposed as an unusual punishment under "the rarest of the rare" conditions. 

• Terrorism-related offences- 

• Muhammad Afzal was executed by hanging on February 9, 2013. For the attack on the Indian parliament in December 2001, in which five armed assailants killed nine people, he was executed. 
• The only survivor of the 2008 shooting, Mohammad Ajmal Amir Qasab, was executed on November 21, 2012, for various offences, including waging war on India, murder, and terrorist acts.

• Rape- 

• According to the Criminal Law Act of 2013, anyone who causes injury in a sexual assault that leads to death or leaves the victim in a "persistent vegetative condition" may be executed.
• The death penalty is applied to gang rapes. These changes were enacted in response to the gang rape and murder of medical student Jyoti Singh Pandey in New Delhi in 2012.
• According to the 2018 Criminal Law Ordinance, a person convicted of raping a girl younger than 12 may be given the death penalty or a 20-year prison term plus a fine. 
• An under-12-year-old girl who is raped in a group will also face the death penalty or life in prison under the 2018 amendment. These changes to the penal code were brought about due to the rape and murder of eight-year-old Asifa Bano, which created significant political unrest in Jammu and Kashmir and throughout the country.
• Kidnapping- According to Section 364A of the Indian Penal Code, 1860, any person who detains someone and makes death or physical harm threats against him, and the victim dies as a result of the kidnapper's actions, will be held accountable under this provision.
• Drug trafficking-A person who is found guilty of committing, attempting to commit, aiding, or conspiring in drug trafficking offences, or financing the use of specific types and quantities of narcotic and psychoactive drugs, may get the death penalty. 
• Treason- Anyone who engages in or attempts to wage war against the government or aids officers, soldiers, or members of the Navy, Army, or Air Force is subject to the death penalty.
• Military offences- Assault, mutiny, or an effort to lure an airman, soldier, or sailor away from their duty are all punishable by death if carried out by a member of the Army, Navy, or Air Force.

• Other offences resulting in death- 

• According to the Indian Penal Code, a person who murders someone while committing an armed robbery faces the death penalty.
• The offender will be executed if the victim is killed during the kidnapping.
• Participation in organized crime is punished by death if it results in the death of any person.
• When someone commits Sati to another person or aids in doing so, the death sentence is also imposed. 

Case laws related to the death penalty

• Bacchan Singh vs the state of Punjab(1980)-

• In this case, the Supreme Court upheld the constitutionality of death sentences and laid down the principle of the "rarest of rare doctrines", i.e. death penalty should only be awarded in rare cases.
• However, the scope of this phrase was not specified.
• The court said that the death penalty is the unlawful infliction of death by the state as a punishment for wrongful and heinous crimes committed by the accused.

• About the rarest of the rare-

• Only in exceptional circumstances of culpability is it necessary to take extreme action by applying the death penalty.  
• Before opting out of capital punishment, the offender's circumstances must be taken into account.
• Life imprisonment is the rule, and the death sentence is an exception. In other words, the death sentence should be imposed in cases where life imprisonment proves to be insufficient punishment for accurate conditions of the crime.
• A balance sheet of all aggravating and mitigating circumstances needs to be drawn up, and full weightage must be given to mitigating circumstances to strike a balance between them.

Machi Singh vs the State of Punjab (1983)—

• The broad principles laid down in the Bacchan Singh case were adopted in the Macchi Singh case. 
• There is a requirement for preparing a balance sheet of aggravating and mitigating circumstances before the death penalty can be imposed.

• Upendra Pradhan vs the state of Odisha

• The accused were charged under sections 307, 302, and section 34 of the IPC. The session judge found them guilty and sentenced them to life imprisonment without any proper reasoning as required to be given. There was no balance sheet and no special reason given for the same, HC reversed the judgment, but they produced no reason.
• This judgment was criticized because the rules in Bachan Singh and machi Singh were not adhered to.
• The court provided no reason for inflicting the death penalty or explaining how the case falls under the rarest of rare cases; neither the mitigating nor aggravating factors were highlighted.

• Shabnam vs. state of U.P.

• The accused and her lover committed parricide, including the murder of an infant. The accused were charged under section 302 and section 34 of IPC. The case fell under the rarest of rare categories, as an infant was brutally killed, and the accused showed no remorse. After analyzing aggravating and mitigating circumstances, the accused was given a death sentence.

Recommendation of the 226th Law Commission on death penalty- 2015

• The death penalty does not serve as deterrence against any crime. Even after the death penalty's existence, crime in society has not been reduced.
• Retribution vs vengeance: the notion of an eye for an eye and tooth for a tooth has no place in our constitutionally mediated criminal justice system.
• Such a kind of death penalty stands against the restorative and reformative justice provided in a civilized society.
• Reliance on the death penalty diverts attention from other problems ailing the criminal justice system, such as poor investigation, crime prevention, and victims' rights.
• There is a need for a victim compensation scheme - to rehabilitate victims of crime.
• Need for effective investigation and prosecution by the state.
• Concerns expressed by the Supreme Court on arbitrary sentencing in death penalty cases.
• Erroneous imposition of the death penalty at times.
• The death penalty has been disproportionately awarded to people from vulnerable sections or socially and economically marginalized sections of society.
• The death row convict faces considerable delay.
• Death penalty acts as a kind of double punishment- as the death row phenomenon is compounded by the degrading and oppressive effects of conditions of imprisonment imposed on the convict, including solitary confinement and the prevailing harsh prison conditions.
• Lastly, while concluding, the law commission also recommended that the death penalty be abolished for all crimes other than terrorism-related offences and waging war affecting national security.

Arguments in favour of the death penalty

• It is based on the deterrent theory of punishment- instilling a person's fear of death. It can become an example for society so that people may not commit heinous crimes in the future.
• Article 21- the death penalty in India is awarded as per article 21 of the constitution, where the life and liberty of a person can be taken based on the procedure established by law, and such punishment is provided in rarest of the rare cases (held in Bachan Singh vs State of Punjab).
• Morally wrong- keeping such a person alive who has conducted some heinous crime is morally wrong. If the person who has committed some heinous crime is kept alive, then there is a tendency that the person will commit the same crime in the future. Therefore posing a threat to society as a whole.
• Death penalty allows for the right to appeal- the Indian laws provide for an appeal against the decisions of the high court and even the supreme court. Article 72 of the constitution allows the convict to appeal the decision of the supreme court to the president of India if the death sentence has been awarded.

Arguments against capital punishment-

• Retribution of state- the provision of the death penalty ensures the concept of retribution by the state itself. Furthermore, justice based on vengeance is said to be the lowest form of justice.
• It does not help in reducing/deterring any heinous crimes(262nd report of law commission of India).
• The United Nations Commission on Human Rights calls upon countries "not to impose the death penalty on a person suffering from a mental disorder or to execute any such person.
• Time gap- generally, there is a large gap between awarding the death penalty and execution. This keeps offenders waiting on death row.
• The death penalty is not approved as per human rights.

Way ahead-

• An attempt should be made to reform the convict before he is awarded capital punishment.
• The Focus should be made on reducing disparities in inflicting capital punishment.
• The principles laid down in the Bachan Singh case, and the Machi Singh case should be strictly adhered to.